The opinion of the court was delivered by: WEBER
Prior to the institution of these suits a suit had been brought in this court against Baltimore and Pittsburgh Motor Express, Inc. (herein called B & P) for personal injuries received in an automobile accident. This action was settled before trial by payment of damages by Allstate Insurance Company, the insurer of B & P. The claim against B & P was based on the allegation that B & P was liable for damages because the truck in question was being operated at the time in the conduct of its transportation business under its I.C.C. motor carrier rights.
The second suit (C.A. 64-1018) was filed by Allstate against Nationwide Mutual Insurance Company on the grounds that Nationwide's policy issued to Sustrick provided coverage when the vehicle was not being used on the business of B & P.
Involving common issues of fact and arising out of the same set of circumstances, the cases were consolidated for trial, and upon the jury's findings in answer to special interrogatories that the truck was not being used in the service of B & P at the time of the accident, the court ordered judgment entered for plaintiffs in both cases, but limiting them to one recovery.
Defendants in both cases have moved for a new trial and for judgment N.O.V. on the grounds that they are not liable as a matter of law and that the issues should not have been submitted to the jury. Upon review of the evidence and the briefs and arguments of counsel we believe that there were issues of fact for the jury and that the jury's determination was based on substantial evidence as well as issues of credibility.
We have here only one basic issue, and one real party plaintiff, despite the two different suits brought on alternate theories of liability. There can be only one recovery. The only question at issue here is, which insurance carrier is liable under the facts of this accident?
These cases appear at first impression to fit the pattern of that series of cases imposing liability on a lessee (common carrier) of a motor truck rather than upon the lessor (owner) under circumstances where the truck had completed its assigned shipment for the lessee and was returning to its terminal or to the owner's storage facility. See: Glens Falls Ins. Co. v. Cradlebaugh and Allison, 266 F. Supp. 630 (W.D.Pa.1966) aff'd. p.c. 376 F.2d 844 (3rd Circ. 1966); Mellon Nat. Bank & Trust Co. v. Sophie Lines, Inc., 289 F.2d 473 (3rd Circ. 1961); and Walter v. Dunlap, 368 F.2d 118 (3rd Circ. 1966), aff'g. 250 F. Supp. 76 (W.D.Pa.1966).
The rationale of these "return trip" cases is expressed in Hodges v. Johnson, 52 F. Supp. 488 (W.D.Va.1943) as:
"It would be absurd to say that this responsibility should attach while the truck is proceeding on a journey loaded, and should not attach on a return journey while empty. Both the journey to Roanoke, and the return journey to Charlotte, are necessary parts of the same trip, and the whole trip was undertaken, and was being made under the authority of (the franchise holder)."
The factors which entered into the holdings in the above cases were:
(1) An exclusive lease from the owner to the carrier.
(2) The business of the owner was solely the leasing of vehicles and the business of the carrier was transportation.
(3) The physical presence of the identifying decals of the lessee-carrier on the outside of the vehicle ...